May 21, 2012

Arnold v. Sarn Lawsuit History

Mental Health Attorney Charles “Chick” Arnold explains how his name became associated with the class action lawsuit Arnold v. Sarn. Filed in 1981, the lawsuit seeks to force the State of Arizona to provide the community-based system of care for individuals with serious mental illnesses that is promised in state statute.

Ted Simons: good evening and welcome to "Arizona horizon." i'm ted simons. In 1980, Arizona was on the leading edge of an effort to move the mentally ill out of institutions and into community care. The legislature passed a law prescribing a statewide system of residential services for people with serious mental illnesses. A year later, the state was sued because such a system still did not exist. The case, known as Arnold v. Sarn, went all the way to the Arizona supreme court. The high court sided with a lower court that ordered Arizona to provide the community-based care that state law required. Fast forward to 2012. Arizona still hasn't completely satisfied various court orders in the case. But last week, a landmark agreement was announced that could lead to the end of the lawsuit. More on that agreement in a moment but first phoenix attorney chick Arnold tells us why he became the named plaintiff in the Arnold v. Sarn lawsuit back in 1981. There you are. Good to see you. Thanks for joining us.

Charles “Chick” Arnold: my pleasure.

Ted Simons: let's get started with how the lawsuit got started. Who were you in 1981? And who was the gentleman named john gosh?

Charles “Chick” Arnold: it's a great question, ted. I was the public fiduciary in maricopa county. As such i game the guardian of 600 people in our community who didn't have families. As you note demographics of our communities are such that people move here and often leave their families and social networks behind. John Goss was one of the people for whom our office served as guardian. John had a serious mental illness and at the time, 1979, 1980, lived in what i referred to then as the mental health ghetto in our community. An area between 7th avenue and 7th street, roosevelt to mohave that was pretty much filled with single-room-only occupancy supervisory care homes, as they were known back then.
Ted Simons: and so because they are, now, there was statute passed that said that these people needed to be taken care of in a variety of ways. Mr. Goss who sounds like he had at least a little bit going for him, knee what was going on and what was going on wasn't what the statute required.

Charles “Chick” Arnold: indeed. John was a bright guy. He was one of these folks you would see walking the streets of phoenix every day. You could almost recognize him because he was afraid to stay in his boarding home. S&w boarding home was notorious. It had burned down two or three times. He was ill. He wasn't stupid. He would walk the streets of phoenix. Each day he would stop in our office at the downtown old court house and visit with me. And he wondered, he heard about the statute that was passed that gave rights to people with serious mental illness and he wondered why there were no services available for him. I was a lawyer. I was john's guardian. My gosh. I simply connected the dots. There was a critical need to hold our communities accountable for the statutes that we had passed.

Ted Simons: and so you filed a class action lawsuit. Correct?

Charles “Chick” Arnold: i joined with the center for law in the public interest and john became one of five named plaintiffs in the case.

Ted Simons: and you filed the lawsuit. And then, i mean, what happened? It just seemed like delay -- 10 years later the supreme court got it. 10 years later.

Charles “Chick” Arnold: well, the story, it would go slowly. The original defense in the case was that the state was that the state didn't have the funds to carry out intent of the statute. Judge Bernard Dougherty, the trial court judge, determined that wasn't a defense. What he said essentially was that the state health department had one of two responsibilities. Either to go try to get money to support its statutory responsibility, or lobby to change the statute. But for so long as the statute said what it did, which was creating a mandatory duty to provide services, the state had no discretion.

Ted Simons: and the supreme court agreed.

Charles “Chick” Arnold: supreme court agreed. In 1989 the court affirmed as you suggested the lower court decision and shortly after that, in 1991, the parties got together with what was called at the time the blueprint or the implementation plan. It was a detailed agreement to carry out the intent of the court order.

Ted Simons: and yet that suit remained open.

Charles “Chick” Arnold: the suit did. It continues to remain open because the implementation plan determined how that court order was going to be met. And it defined about 285 separate provisions that needed to be complied with. Over time certain of those provisions had been met. There is a grievance system. There are rules now that didn't exist when the case was filed.

Ted Simons: and yet we hit now in the past couple of years or so, and we see budget cuts, we see other aspects of this come into play. Talk to us about the impact there.

Charles “Chick” Arnold: the fiscal crisis resulted in dramatic changes in our community mental health system. Title 19 is the Medicaid equivalent that covers people who are seriously mentally ill through federal reimbursement. For those people who were not eligible for title 19, that is to say, for whose services funds were not reimbursed by the federal government, there were dramatic cuts in services. They lost the ability to use brand name medications. Many of those folks lost case managers. Those are the kind of things that are anticipated to be reinstated when this infusion of additional funding now.

Ted Simons: we do want to talk about the agreement in a second here with some additional guests. However, i want to ask you. What became of John Goss?

Charles “Chick” Arnold: great question. John has died. He died about 10 years ago. He didn't get to enjoy the successes of the lawsuit. I know he would have enjoyed it, and participated to the extent he could.

Ted Simons: how would he have been handled? I am going to try to figure out this, get to this question in a way through him. Before the cuts, before the cuts and the economic down turn here in the last few years, how would he have been handled? How would he have been handled after the cuts? How would he have been handled today with this agreement?

Charles “Chick” Arnold: john's only income, way back then, was SSI, supplemental security income. And that would make john what now is considered title 19-eligible. Thus john wouldn't have suffered the kind of devastating losses that the non-title 19 population suffered two years ago. Similarly, the reinstatement of those funds wouldn't have the a major impacts on john.

Ted Simons: last question. We will talk about the agreement here in a second. But what are your thoughts, before we get into it?

Charles “Chick” Arnold: i think it's a fabulous thing that there is now some definition and certainty in our system. Families, consumers, have been chagrined over the last two years because of the uncertainty, because of the nature of the fiscal crisis and what it's done to services that are critical for success in our community. This agreement defines the additional services that are going to be emphasized. The state is committed to use its best efforts to meet the needs of our community's residents and i believe provides a mechanism for future success.

Agreement in Lawsuit Over Services for the Seriously Mentally Ill

Governor Jan Brewer and plaintiffs in the 1981 Arnold v. Sarn lawsuit have signed a 2-year agreement that creates a framework for improving services for people who have serious mental illnesses. Dr. Laura Nelson, Director of the Division of Behavioral Health for the Arizona Department of Health Services, and plaintiffs’ attorney Anne Ronan discuss details of the agreement.

Ted Simons: here now to talk about the interim agreement in the Arnold v. Sarn lawsuit is Dr. Laura Nelson, director of the division of behavioral health for the Arizona department of health services. And plaintiffs' attorney Anne Ronan of the Arizona center for law in the public interest. Good to have you here. We kind of got a background from chick Arnold in how this whole thing started. What is the whole thing about?

Dr. Laura Nelson: well, i will start and then Anne can certainly jump in. Historically, in our community, and really internationally, people with serious mental illness have oftentimes found themselves warehoused in state hospitals and state institutions. And back in the 1960s, there was i think the beginning of this movement, as medications were established, to try move folks back into the community so they could live successfully there. Really that's what the root of this lawsuit was. What is Arizona going to do to try to get people out of Arizona state hospital to support them successfully in the community?

Ted Simons: there were statutes. There are obligations. Correct? The state did have obligations to meet regarding these folks.

Anne Ronan: oh, yes. I think one of the things that's really kind of significant about Arizona's statutes is that it was probably one of the first states to sort of get ahead of it and pass legislation that required the community-based services. The difficulty came in that there was their wasn't a community-based system developed and there was no funding for it. And so that was the genesis of the lawsuit.

Ted Simons: as we mentioned with chick Arnold, filed in 1981. Supreme court 10 years later. This thing has been going on for 30 years. Why?
Anne Ronan: well, i think partly because it's complicated to develop community-based services for a population with such significant needs. They have met sort of traditional medical needs, needs for psychiatric care and medication. They have needs for supported employment and housing supports, case management, and counseling and therapy and all those other sorts of things. But to create that from nothing takes a lot of time and thought. Sometimes there's some efforts made that aren't quite on the right track, need to be corrected and it's the development of a whole system.

Ted Simons: and sometimes the economy takes a deep nose dive and you wind up with a two-year stay. Talk us to about what that involved and means.

Dr. Laura Nelson: that's exactly what happened in Arizona. And we were fortunate in the behavioral health community in that we survived the first couple of years of very tough economic times. And the governor was very clear from the beginning about her commitment to behavioral health. But in fiscal year i think '11, we did see some pretty drastic reductions to state funding to support individuals with a serious mental illness. For the last two years, we have significantly reduced the benefit package for this population. As chick mentioned, folks that qualified for Medicaid really did not see any change. But it's those individuals who made too high to qualify for Medicaid that saw some significant changes to their benefit package.

Ted Simons: and the idea was, during this stay, that the state would make the best efforts in this whole situation. Did the state make its best efforts?

Anne Ronan: i think within the financial constraints they were in, yes. One of the things that was really very important, they worked very collaboratively with the access administration to make sure as many possible class members could stay on the Medicaid system & that made a huge difference. And there were a lot of folks who i think we thought would have fallen off and have the reduced benefit package that were actually able to stay on Medicaid. So that was a big, big difference. Then i think the department supported a lot of less expensive and community-based initiatives to keep folks, keep tabs on folks, support folks so there wasn't a lot of serious falling through the cracks.

Ted Simons: and after the stay now, we have got an agreement. Talk to us about the agreement. This is about a two-year agreement as well. Why two years?

Dr. Laura Nelson: yes, it is. I think primarily because there's still some uncertainty at the federal level. What's going to happen with the supreme court decision around health care reform? If that continues to move forward, that many, then many of the individuals who currently don't qualify for Medicaid will likely qualify for Medicaid come january 1st of 2014. So i think we agreed that there was some value in coming up with a two-year additional agreement at this point. We will be back at the table starting again in july of 2013 and really trying to hammer out what is it going to take to exit this case?

Ted Simons: the idea that this agreement has to be approved by a court as well. That's true. Correct?

Anne Ronan: that's correct.

Ted Simons: any questions regarding that court? Will the court look over and say, i don't think so?

Anne Ronan: well, i can't speak for the court.

Ted Simons: sure.

Anne Ronan: but i think historically the court has relied on the parties working through some of the difficult issues and presenting compromised agreements and has generally supported the agreement when is they have been presented to the court.

Ted Simons: and the obligation now for Arizona looks to be something called a recovery model, something along these lines. What exactly changes? What does the agreement do?

Anne Ronan: well, i am not sure it changes. It specifically emphasizes and supports in a financial way the services that we all know who do this work, really work for people with serious mental illness to help them stay in their homes, to get jobs, and to have a life in the community. So it identifies very specific services that have been research based that we know supports individuals such as supported housing, supported employment, peer and family supports. For the first time they are articulated in a way that's tied to a set of national standards which is very critical.

Ted Simons: i was going to mention that, the best practice standards. Talk to us about that. How important is that? And was that something easy to come to terms with or debatable?

Dr. Laura Nelson: i think we were actually on the same page around that. We all agreed that we wanted to move to more outcome-based types of assessments. We turned to the substance abuse and mental health services administration off the department of health and human services at the national level and looked for some of the best practice models that they have developed and been promoting nationally. And those include the supported housing, the supported employment, peer operated programs as well as intensive case management approach called assertive community treatment. And so those are models that we have already endorsed and embraced in Arizona but we have not specifically been monitoring to the fidelity of what those models are about and that's the new piece here.

Ted Simons: i was going to ask accountability? How is that handled? How would that be measured now in these two years?

Anne Ronan: i am not sure we have resolved that completely. I think that's part of what we are going to be working on in the next year and a half and with, as dr. Nelson said, in the work we are going to do starting in july of 2013. But the initial step, which is a critical step, that is these standards will be incorporated into the new contract in maricopa county. You know, the contract for mental health services in maricopa county is up for renewal or recontracting this coming fall, i believe. Correct?

Dr. Laura Nelson: well, it's going out in the fall. But it's for an october 1, 2013 start date, our new contract officially.

Anne Ronan: so these standards that dr. Nelson spoke about, these national standards, will be required in the new contract. And so as that evolves we will be developing the monitoring and basically the compliance standards for how to measure whether they are doing the job according to these national standards.

Ted Simons: and Anne mentioned the money that now would be maybe things didn't change. But certainly the money changes everything. 39 some odd million dollars from the state.

Dr. Laura Nelson: yes. Thanks to the legislature and the governor, we have secured approximately $39 million new state dollars to support adults with serious mental illness who don't qualify for Medicaid. And the services in particular that these funds will go to support are these community-based services. So, in fact, this week we're having some stakeholder meetings. We are going to be meeting with plaintiffs again on friday to really talk about our strategy in regards to how we can most effectively use those dollars to support community-based services.

Ted Simons: that compares to what? 50, 60, some odd million cut?

Anne Ronan: it's hard to put a specific amount. That's really easy number to go to because that was the number that was deleted from the specific line item. But there were cuts to provider operators and that sort of thing, that sort of added to the complexity of the cuts. But it's not far off from the actual dollar figure. The other thing that has happened is with the transition of so many of the folks on to the Medicaid rolls, that brings down more federal dollars for a group of people who are primarily served by state-only dollars. So it should be a pretty good match. The other big piece, i think, is that we agreed to a process, and we are going to have to discuss what it all looks like but the outline of the process is that we are going to actually look at the elements of the data that the department has and some new data sources to make sure we are filling the gaps in these specific services. So we know there's some of these services that aren't out there anywhere near the volume. And we are going to work to get them up to speed.

Ted Simons: very good. We got to stop right there. Good to have you both here.

Ted Simons: the amount of money that the state gets from tribal gaming operations is on the rise. Here with the numbers is mark brnovich, director of the Arizona department of gaming. Thanks for joining us.

Mark brnovich: thanks for having me.

Ted Simons: how much do these contributions contribute to the state?

Mark brnovich: cumulatively since the gaming exacts were passed by the voters in 2002, the number is $700 million. But in the last fiscal year, the numbers last year $78 million and we will exceed that with this fiscal year ends in june 30. So the numbers are up.

Ted Simons: latest quarter sounds like numbers are up as well year to year.

Mark brnovich: they are. Year to year number is about $7.4 -- 7.4%. This is the seventh consecutive quarter of increases. Revenues had bottomed out and really troughed out about 2008, through middle of 2010. And now we have seen steady increasing. Slight increases but steady increases.

Ted Simons: is that an economic indicator that things are doing a little better throughout for everyone so they can head on to the casino?

Mark brnovich: i think we generally accept that gambling is done with discretionary income in indian country. Folks visit indian casinos with their discretionary dollars. So when you see these increases that means i think people are feeling more confident about the economy, and they have more money to spend and they are willing to spend it at the tribal gaming facilities.

Ted Simons: all this money, where does it go?

Mark brnovich: the Arizona department of gaming administers the gaming fund. The tribes are required by the gaming exacts to contribute 11 and 8% of their net gaming revenue to the benefits fund. That benefit fund goes to everything from the educational improvement fund, the emergency services and trauma fund, the wildlife fund and the tourism fund always well as funding the department of gaming.

Ted Simons: looks like $12 million this last year, i believe. Thinks the last quarter number?

Mark brnovich: that is last quarter.

Ted Simons: $12 million for education, $6 million for trauma and emergency service, $2 million for your operations, i should say, the gaming department. Conservation $1.7 and for treatment and education and programs for problem gambling, there is somewhat like half a million dollars.

Mark brnovich: right. Our office does administer the office of problem gaming is located in the department of gaming. There are social costs associated with gambling and it's something that we try address in the office of problem gambling. There's 1-800 help line, next step available for problem gamblers.

Ted Simons: have you seen that being used as much? When this first started a lot of folks were concerned about that. Have you seen people using this as much as maybe they had thought they would early?

Mark brnovich: well, what we have seen within the department is that lately there has been an increase in the number of folks that have reached out for treatment to deal with problem gambling. Now, there's always that question. Is that because more information is being provided? And there's more service providers? Especially when gaming first started. When it first started up hire even a decade ago there weren't a lot of treatment providers so you were seeing more treatment providers and more opportunities for treatment. Is it a chicken and egg thing? Or is it because there's month problem gamblers?

Ted Simons: what are you seeing as far as revenue now as pop owes opponent possessed to when the tribal casinos first started up? During boom-boom years in the mid five, six, seven years ago. I'm guessing they were pretty high.

Mark brnovich: we have not reached the numbers that were there in 2006, 2007, 2008. Those numbers were tribal gaming revenues were really, really high. But like as i said earlier we are starting to inch back up and we are starting to slowly get back there. Of course, the question ass also is that what happens if the economy not only here, worldwide, you see what's going on in greece. Are they going to default? Spain and so what impact does that have? What impact does the expiration of the tax cuts have? We need wait and see whether we are fully out of this. This is one of those we slowly start to creep out of this recession, the question is will this economic recovery continue or not? And obviously if it doesn't recover it will affect a lot of people including gaming revenue.

Ted Simons: last question. I know these numbers are base, you said 1 to 8% of class 3 revenue goes to the state and cities and towns. What is class 3 gaming revenue?

Mark brnovich: class 3 gaming revenue is essentially the casino revenue, casino games. The slot machines, the blackjack, the bank poker games. That's class 3 gaming. This goes back to the indian gaming regulatory act that created these distinction. Class 2 is bingo like games.

Ted Simons: very good. The numbers are up and they look to have been up for, seven, what, seven straight quarters? Good to have the numbers. Good to have you here.

Mark brnovich: thank you, ted. Thank you very much.

Ted Simons: tuesday on "Arizona horizon," how much county wildfires that have ravaged the state in recent years be tied to the way we manage our forests? We'll take a look at policies, practices and efforts to reform forest management. Tuesday at 5:30 and 10:00 right here on "Arizona horizon." that is it for now. I'm ted simons. Thank you so much for joining us. And you have a great evening.